Sunday, Jan 26, 2014, 11:39 am

A Victory for the Rights of Texan Women (But Only If They Are Dead)

The good news is that, in Texas, women’s second-class citizenship lasts only as long as they live. The bad news is that pregnant women who refuse life-sustaining treatment by advance directive must still be kept alive against their wishes.

A judge ruled Friday that a Tarrant County hospital must disconnect the ventilator from Marlise Muňoz’s dead body by 5pm on Monday, a ruling the hospital may still appeal.

Marlise was declared brain dead on Nov 28, two days after she collapsed in her home from a suspected pulmonary embolism. No one knows how long the 33-year-old paramedic was clinically dead on her bathroom floor before her husband found her and tried to resuscitate her. Marlise died, in law and in fact, because her entire brain was destroyed by oxygen deprivation.

Erick Muňoz, Marlise’s widower, says his wife told him repeatedly that she didn’t want to be ventilated if she became brain dead, a claim no one disputes. Marlise didn’t write out an advance directive, but Texas law gives Erick the power to carry out her wishes.

The hospital’s lawyer, however, argued that turning off the ventilator would violate the Texas Advance Directives Act (TADA) because Muňoz’s body is still gestating a 22-week-old fetus. TADA prohibits doctors from withdrawing “life-sustaining” treatment from a pregnant patient.

In court, the Muňoz family’s lawyers stated the obvious: Marlise’s life is not being sustained because she is already dead. The hospital was finally forced to admit in court that Marlise is brain dead.

The hospital’s lawyer insisted that it doesn’t matter what the law says because Texas legislature intended to force all incapacitated pregnant women, dead or alive, to become incubators. "It is unlikely that the [Texas] legislature's intention was to let the unborn child die with the mother," the hospital’s lawyer said. Otherwise, he maintained, TADA wouldn’t have singled out pregnant women to deprive them of advance medical directives. "The state has consistently expressed an interest in protecting the life of an unborn child," he added.

However, one of the statute’s authors has stated publicly that he and his fellow legislators never intended for the law to apply to dead women. The legislators wanted to keep pregnant women alive against their wishes, but even they weren’t seeking a posthumous power grab.

The judge ruled that even the majestic state of Texas cannot compel the impossible by legislative fiat. Life-support is for the living. No one can withdraw what can’t be provided.

The family’s lawyers also argued that even if TADA somehow applied to dead bodies, despite the clear language of the statute, the law would be an unconstitutional violation of a woman’s rights to privacy and equal protection under the law. The court sidestepped the constitutional questions, ruling instead that the law doesn’t apply to dead people, but surely the family’s lawyers are correct on the constitutional question. TADA law makes women second-class citizens. Adults have the right to decide to accept or reject medical treatment, either directly, or by advance directive, should they become unable to speak for themselves. However, in Texas, a pregnant woman loses that basic human right.

If Marlise Muňoz’s family are allowed to carry out her wishes, that will be a victory for sanity and decency. However, the fact remains that TADA makes pregnant women second-class citizens in Texas. They shouldn’t have to die to get beyond its reach.

Lindsay Beyerstein is an award-winning investigative journalist and In These Times staff writer who writes the blog Duly Noted. Her stories have appeared in Newsweek, Salon, Slate, The Nation, Ms. Magazine, and other publications. Her photographs have been published in the Wall Street Journal and the New York Times' City Room. She also blogs at The Hillman Blog (http://www.hillmanfoundation.org/hillmanblog), a publication of the Sidney Hillman Foundation, a non-profit that honors journalism in the public interest.